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Medical Malpractice Law (Washington Health Care Provider Civil Liability Law) – Part 6

(Medical Malpractice – Part 6 in a Several Part Series)

(This is the 6th part in a multiple part series pertaining to Medical Malpractice Law in Washington State. To read part one click here. To read part two click here. To read part three click here. To read part four click here. To read part five click here.)

State and Municipal Tort Claim Service Requirements

In 2006, the legislature enacted RCW 7.70.100(1), which required a plaintiff in a medical malpractice case, prior to filing suit, to serve a notice of intent to sue on all defendants and to wait 90 days to file.

Prior to the enactment of RCW 7.70.100(1), Washington had long required that a plaintiff asserting a tort claim against the State of Washington or a local governmental entity, including a public hospital district, serve a verified claim for damages and wait until 60 days “have elapsed” before filing suit. RCW 4.92.110 and RCW 4.96.020(4). RCW Chapter 4.92 governs pre-lawsuit claims filing procedures for actions against the state; Chapter 4.96 controls those against local municipalities and quasi-municipal corporations. Since July 26, 2009, (per the statutes) the standard state tort claim form must be used for both Chapter 4.92 and 4.96 claims. In a case against the State, the claim must be served on the Department of Risk Management in Olympia. As to local governmental entities, the claim must be served on an agent designated by the municipality to receive the claim, and the agent’s identity and address are to “be recorded with the county auditor of the county in which the entity is located.” RCW 4.96.020(2).

When the legislature enacted RCW 7.70.110(1) in 2009, it also added language to RCW Chapters 4.92 and 4.96 exempting medical negligence claims from the 60 day tort claim filing requirements. (“Claims involving injuries from health care are governed solely by the procedures set forth in Chapter 7.70 RCW and are exempt from this chapter.” Former RCW 4.92.100(1). “[E]xcept that claims involving injuries from health care are governed solely by the procedures set forth in Chapter 7.70 RCW and are exempt from this chapter.” Former RCW 4.96.020(1).)

In Waples v. Li, 169 Wn.2d 152, 234 P.3d 187 (2010), the Supreme Court held that the 90 day pre-suit notice requirement was unconstitutional, as being in conflict with the state judiciary’s power to establish court procedures (specifically CR 3(a)) and therefore was in conflict with state separation of powers principles.

After Waples, there was some confusion about whether any notice of claim requirement remained (i.e., the 60 day notice requirements) against public hospital districts or state owned or managed hospitals Some, but not all lawyers, both prudent and paranoid, chose to comply with both statutes. The Supreme Court cleared up that confusion (and put a serious scare into many plaintiffs’ lawyers) when it held, in McDevitt v. Harborview Medical Ctr., 291 P.3d 876 (2012) that as applied to the state and to public hospital districts, RCW 7.70.110(1) was constitutional.

In 2013, the Supreme Court withdrew the opinion in “McDevitt I” and while it upheld the constitutionality of the pre-suit notice requirement as to state and public hospitals, it chose to apply its ruling prospectively only recognizing in its opinion that McDevitt relied on the “unqualified language” in Waples, that RCW 7.70.110(1) was unconstitutional. McDevitt v. Harborview, 179 Wn.2d 59, 76-77, 316 P.3d 469 (2013).

In 2013, the legislature amended Chapters 4.92 and 4.96 and removed the language exempting health care injury claims from the 60 day notice of claim requirements. The legislature also deleted the language in RCW 7.70.100(1) relating to the 90 day notice requirement. Therefore, the current requirement is the 60 day notice requirement.

In Hyde v. University of Washington Medical Ctr, 186 Wn. App. 926, 347 P.3d 918 (2015), Division I held that the tort claim filing requirements of Chapter 4.92 applied to the University of Washington Physicians (UWP),  finding that UWP, a nonprofit corporation, was “functionally an arm of the state.” Id., 927-928, 936. Rev. Den., 184 Wash.2d 1005, 357 P.3d 666 (2015).

It is imperative to comply with governmental claim filing requirements in medical malpractice cases. Washington has many public hospital districts (authorized and governed by RCW Chapter 70.44) to which Chapter 4.96 applies. For a current list of all public hospital districts see http://www.awphd.org/. In addition, the State of Washington operates the University of Washington Hospital system which now includes, in addition to University Hospital (AKA the UW Medical Center), Northwest Hospital and Harborview Medical Center (owned by King County and managed by the University of Washington).

Although the statutes prescribe that substantial compliance is sufficient, perfect compliance will always be unassailable.

In the next post, we will address arbitration in the context of medical malpractice lawsuits.

(This article was written by Mark Johnson and Michael Sprangers. Mark and Michael’s practice focuses on medical malpractice, legal malpractice, and serious personal injury lawsuits. Their law firm Johnson Flora Sprangers PLLC is located in the Belltown neighborhood of Seattle, Washington.)  

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